Complaints have been heard that members of Congress are not sufficiently informed by the executive branch to conduct properly oversight of secret programs, such as those NSA collection activities that are the subject of much controversy. The complaints are misplaced. A bigger factor is the chronic attention deficit disorder afflicting most members of Congress, in which they pay disproportionate attention to flaps and controversies because they are flaps and controversies, and Congressional time and attention is not apportioned according to the intrinsic importance to the nation of each subject. In short, if there is insufficient oversight of some of those secret programs, it is less because information is not being made available to members than because members do not take the time and trouble to use the information already available to them. The Republican chairman of the House intelligence committee, Mike Rogers, says that “very few members” take advantage of his invitations to receive staff briefings on counterterrorist operations or the NSA surveillance activities.
One further indication that inattention is the main problem is the fact that Senators Ron Wyden and Mark Udall evidently did not have a shortage of information in devoting considerable energy to agitating—while being careful not to disclose classified information publicly—about what they regarded as an imbalance between security and privacy in intelligence collection programs. If other members had paid more attention to what they were saying and been more responsive to their agitation, the country would have had the debate it now has without needing any damaging compromise of information by a leaker-defector.
Another example, from 2002, is that fact that hardly any members of Congress bothered to look at a now-infamous intelligence estimate about Iraqi unconventional weapons programs even though they were about to vote on a resolution authorizing a war that supposedly was based largely on the subject that the estimate addressed. One of the few members who did read the document, Senate intelligence committee chairman Bob Graham, concluded that it did not support what the administration was saying on the subject and voted against the war resolution.
There have been instances, even since the current system of Congressional oversight of intelligence agencies was established in the 1970s, of intentional obscuring or withholding of relevant information from Congress with the apparent intention of frustrating or precluding oversight. A notable practitioner was the inveterate Cold Warrior William Casey, who, although he was appointed director of central intelligence would have preferred to be secretary of state and, in the words of his protégé Robert Gates, used the job as a platform “to wage war against the Soviet Union.” Casey's lack of forthrightness with members of Congress reportedly led to members looking for his deputy, Bobby Inman, nervously tugging at his socks as an indication that Casey was dissembling. Then-Senator Joe Biden put it this way:
They'd be sitting there, and Casey would be lying like a son of a bitch, and I'd look at Inman. I'd say, “Is such and such a covert action happening?” and Casey would be going mumble mumble mumble, and Inman would be reaching down pulling up his socks...It meant “Take this with a grain of salt.”
In the George W. Bush administration there was another instance of ideologically-driven limitation of Congressional awareness of secret activities, related to an effort centered in the vice president's office to assert an expanded sense of executive power and privilege. This led to warrantless wiretapping that was ended only after public disclosures and new legislation.
Despite the controversies swirling today over matters such as NSA collection programs, it is hard to find evidence of deliberate exclusion of Congressional awareness and oversight, based on motivations anything like those involved in these past episodes. What has given rise to charges of public misinformation has been mainly the putting of officials in the uncomfortable position of being asked in open testimony about sensitive programs. Besides wanting to protect classified information, among the chief motivations of executive branch professionals involved in such programs when they are dealing with the Hill is to obtain Congressional buy-in—the more buy-in the better, lest the professionals and the bureaucracies in which they work be left holding the bag when public sentiments change about something like the balance between security and privacy. Getting buy-in requires forthrightness and significant sharing of information.
The executive branch agencies have been able to share such information with considerable confidence that this does not significantly increase the risk of damaging leaks. Although leaks that do occur unfortunately too often cannot be traced to their source, the record of Congress in protecting classified information appears to be good. Members such as Wyden and Udall should be commended for striving to protect that record, despite their obvious frustration in holding their tongues publicly regarding the details of programs of which they have knowledge.
This confidence would be undone if members were to act on a bad idea from Bruce Ackerman of Yale, which is to exploit the “speech or debate clause” in Article I, Section 6 of the U.S. Constitution by reading classified material into the record and claiming immunity from prosecution for doing so. This would be an abuse of the clause, which clearly exists not to abet the breaking of rules—about handling classified material, or anything else—but instead to protect free debate within the legislature. Ackerman refers to the last time this issue was tested in the courts, when Senator Mike Gravel read part of the Pentagon Papers into a committee record. But Ackerman oversimplifies this history by saying that “the Supreme Court unanimously affirmed Gravel's right to publish documents labeled 'Top-Secret: Sensitive' under the speech or debate clause.” Gravel v. United States was mostly about whether one of Gravel's aides could be subpoenaed to testify to a grand jury. Although the majority opinion did appear to extend the speech or debate clause to what Gravel placed in the record in a subcommittee meeting, it also defined coverage of that clause narrowly to apply only to “legislative acts,” explicitly said the clause does not privilege a member “to violate an otherwise valid criminal law in preparing for or implementing legislative acts,” and explicitly said the constitutional provision did not make Gravel immune from prosecution for his role in the more extensive subsequent publication of the material by a private publisher.
If members of Congress started intentionally divulging classified information, the natural—and justified—response of executive branch officials would be to start interpreting their responsibility to share such material with Congress as narrowly as possible. And then members would have to start looking again for deputies with loose socks.